Huge can of worms opened


People should be able to ask Google to 'delete' information about them that they'd like to be forgotten from its search engine results, even when that data is published on third party sites, ruled Europe's highest court today (13 May).

"If, following a search made on the basis of a person's name, the list of results displays a link to a web page which contains information on the person in question, that data subject may approach the operator directly and, where the operator does not grant his request, bring the matter before the competent authorities in order to obtain, under certain conditions, the removal of that link from the list of results," said the judges from the Court of Justice of the European Union in a ruling.

Whether or not people should have the "right to be forgotten" has been a subject of debate for a number of years. Today's ruling relates to a case between Google and the Spanish data protection agency. It was triggered in 2010 when Spanish national Mario Costeja González complained to the Agencia Española de Protección de Datos that when anyone searched for his name in Google, the top results would contain two links to a 1998 story on newspaper La Vanguardia's website about an auction for his repossessed home. He argued that Google's search results represented an infringement of his privacy. 180 similar cases in Spain came forward, all of whom wanted Google to stop indexing personal information about them -- effectively deleting it from the web.

Costeja González initially requested that La Vanguardia be required either to remove or alter the pages in question. The data protection agency rejected that complaint saying that it had been lawfully published and was accurate. The complaint against Google was upheld, and the search giant was asked to withdraw data from its index so that people could no longer access the stories. Google brought action to Spain's high court seeking to overturn the decision, which led the case to being referred to the Luxembourg-based European Court of Justice.

Critics of the right to be forgotten -- including Google -- say that removing legal but undesirable information from the web is tantamount to censorship. Secondly, Google does not host the data, it merely points to it, and therefore should not be responsible for policing the data.

Today's ruling suggests that search engines are, in fact, responsible for the content that they point to -- a responsibility that search engines have traditionally shirked. This could potentially open a huge can of worms for Google and other search engines who are likely to be faced with a flood of similar requests from across Europe.

The ruling is particularly surprising as in June 2013, the Advocate General for the European Court of Justice of the European Union Niilo Jääskinen, ruled that giving data subjects a right to be forgotten would "entail sacrificing pivotal rights such as freedom of expression and information" and should not even be considered on a case-by-case basis since it would give search engines the awkward role of web censor.

The judges said that "by searching automatically, constantly and systematically for information published on the internet, the operator of a search engine 'collects' data" according to EU data protection law. In the process of indexing websites, Google "'retrieves', 'records' and 'organises' the data in question, which it then 'stores' on its servers and, as the case may be, 'discloses' and 'makes available' to its users in the form of lists of results". This must be considered processing data, and as a consequence, Google is a data controller and must be responsible for the content contained in the links even if the information has already been published by a media organisation.

There are a huge number of issues with the right to be forgotten. Perhaps the most glaringly obvious one is that one person's right to be forgotten may be another person's right to remember. Whose right wins out in this case? In the ruling, the judges recognise that there may be a public interest in the information someone wants deleted and that "fair balance" between that interest and the data subject's right to privacy should be sought.

A Google spokesperson said: "This is a disappointing ruling for search engines and online publishers in general. We are very surprised that it differs so dramatically from the Advocate General's opinion and the warnings and consequences that he spelled out. We now need to take time to analyse the implications."

Updated 11:05 13/05/2014: This article has been updated to include a comment from Google.


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